Challenging a Wrongful Termination? Don’t wait too long

The best illustration of the principle not to wait too long in challenging a wrongful termination was the Jeewan case in the Supreme Court of Appeal (“SCA”) just a few months ago:1 

The facts were as follows: Jeewan had been working as a Corporate Governance Manager at Transnet since October 2006. He was dismissed on 14 May 2010 following a disciplinary hearing regarding alleged misconduct connected to a recruitment scam. 

Subsequently, he referred his case of unfair dismissal to the Transnet Bargaining Council (“TBC”) on the grounds that his dismissal was procedurally and substantively unfair. The relief he sought before the TBC was reinstatement to his former employment.  

Arbitration of the dispute between Mr Jeewan and Transnet took place before the TBC on 1 and 2 September 2011 and thereafter on 24 and 25 January 2012 before the Commissioner. On the last day of the hearing, Mr Jeewan withdrew the ground predicated on substantive unfairness, but persisted with the ground that his dismissal was procedurally unfair. On 1 February 2012, the Commissioner issued an award in terms of which she held that Mr Jeewan’s dismissal was, in fact, procedurally fair. Neither Mr Jeewan nor Transnet sought to review the arbitration award or make it an order of court.  

On 29 January 2015, Jeewan filed a lawsuit against Transnet and EY, claiming approximately R57 million for contractual and delictual damages due to wrongful termination for breach of his employment contract, alternatively, for delictual damages in the same amount in terms of the common law. The damages claimed were calculated to run from 2010 to 2034, the latter date being the year when Mr Jeewan would have retired upon turning sixty-three years of age as provided for in his employment contract. 

 In response, Transnet delivered a special plea:  

1. Absence of jurisdiction on the part of the high court to entertain the matter,  

2. The second was that Mr Jeewan’s claim had prescribed in terms of s 11(d) of the Prescription Act 68 of 1969 (“Prescription Act”), and 

3. The third is related to res judicata.  

The high court upheld each of Transnet’s special pleas and dismissed Mr Jeewan’s claim with costs. This was appealed to the SCA.  

The SCA 

Transnet subsequently abandoned the issues of jurisdiction and res judicata. Therefore, the central question to be determined was whether Mr. Jeewan's claim against Transnet had prescribed within three years following his alleged unfair dismissal on 14 May 2010, in terms of section 11(d) of the Prescription Act. 

In its findings, the SCA held that, according to section 12(1) of the Prescription Act, and subject to the provisions of subsections (2), (3), and (4), prescription begins to run as soon as the debt is due. 

The SCA explained that a debt is considered due when the creditor has acquired a complete cause of action for its recovery. This means that when the entire set of facts needed for the creditor to succeed in their claim against the debtor is in place, the debtor is deemed to be in default. In Mr. Jeewan's case, the SCA noted that he was fully aware of the events that led to the disciplinary hearing on 14 May 2010 and 17 May 2010. He understood that, despite the hearing being postponed to 17 May  2010, he was effectively dismissed on 14 May 2010 when Transnet signed the termination letter. Therefore, he was aware on 14 May 2010, that his dismissal was unlawful and knew who the debtor was.  

This led the SCA to conclude that his cause of action for contractual damages arose on 14 May 2010. The fact that Mr. Jeewan referred his unfair dismissal to the Transnet Bargaining Council (TBC) for arbitration, as advised by Transnet, was a decision he made at that time. However, this did not change the fact that his contractual debt became due on 14 May 2010 and was thus subject to the provisions of section 11(d) of the Prescription Act.  From the date of his dismissal, the running of the prescription was triggered. It was only after the award was made against him that he opted to pursue a different route—suing for damages. By that time, five years had already passed, and his claim had expired. 

Nothing was preventing him from approaching the High Court sooner to pursue his common law claim. Consequently, the appeal must fail. 

Conclusion 

Prescription begins when a debt is due; specifically, when wrongful dismissal occurs and the claimant is aware of all related details, even if they later seek alternative remedies. Prescription rules are strict: once you are aware of a wrong and know who is responsible, the three-year civil clock starts ticking. This timeline is unaffected by any concurrent labour or arbitration processes. If you find yourself in a similar situation, it’s crucial to seek legal advice early to protect your rights. 

If you have been dismissed and believe you have a contractual or delictual claim, it is essential to act quickly and ensure your legal rights are preserved within the statutory time limits. Contact an expert at SchoemanLaw Inc for assistance.  

Nicolene Schoeman-Louw | SchoemanLaw Inc       

Commercial Law and Dispute Resolution Specialist    

https://schoemanlaw.co.za/our-services/commercial-law/      

https://schoemanlaw.co.za/our-services/civil-litigation-and-alternative-dispute-resolution/